Clapper update: ACLU moved Second Circuit to stop the Gov’t from resuming illegal mass surveillance of phone records

As reported here, on May 7, 2015, the United States Court of Appeals for the Second Circuit found that the controversial surveillance program according to which the NSA collected Americans’ phone records was not authorized under Section 215 of the USA Patriot Act (ACLU v. Clapper, 2015 U.S. App. LEXIS 7531).

On June 9 – after the USA Patriot Act expired and President Obama signed into law the USA Freedom Act (see here) – the Second Circuit issued an order directing the parties to submit supplemental briefing addressing the effect of the passage into law of the USA Freedom Act on their case.

On July 14, 2015, the ACLU and the NYCLU filed a “motion for preliminary injunction” asking the Second Circuit to immediately halt the NSA’s bulk collection of Americans’ call records.

The government argued to the Foreign Intelligence Surveillance Court (FISC) – from whom it has to obtain an individualized court order before obtaining call records from telecommunications companies – that the new law allows it to continue the bulk collection during a 180-day transition period. The FISC agreed and allowed the NSA to revive the program.

The ACLU and the NYCLU held that the government – resuming surveillance already deemed illegal by the Second Circuit decision – should be barred from pursuing such conduct during the 6 months transition period established by the USA Freedom Act.

The ACLU asked to accept their July 14 motion as also constituting the Plaintiffs’ supplemental briefing ordered by the Court on June 9.

On July 27, 2015, the government filed its response opposing the motion and arguing that the USA Freedom Act enacted in June permitted it to revive the surveillance for an additional six months. The reason of the six-month delay on the prohibition on bulk collection was to preserve the government’s intelligence capabilities “while NSA created the technical ability to transition to the new model of targeted production.”

As for the supplemental briefing ordered by the Second Circuit, the government held that Plaintiffs’ claims are not currently moot. However, the Court “should respect congress’s decision in the USA Freedom act to permit the section 215 program to continue during the transition period”.

The Second Circuit stayed its ruling pending the review of the parties’ supplemental briefs.


The ACLU brief is available at…            Open Pdf

The US Government brief is available at…        Open Pdf


For more information, Francesca Giannoni-Crystal


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